Ontario school board says new rules could lead to 'considerable liability'
An Ontario teacher who has garnered considerable attention online after being photographed wearing large prosthetic breasts in the classroom will not face a dress code requirement anytime soon.
In determining whether it would be advisable to develop such a code, the Halton District School Board was told it would be exposed to “considerable liability” and likely be found discriminatory.
A report from Sari Taha, superintendent of human resources, and Curtis Ennis, director of education, said they considered:
- whether the imposition of a staff dress code would be permissible from a labour and employment law perspective
- whether such a dress code would raise any concerns in relation to the board's obligations under the Ontario Human Rights Code.
“With respect to the requirement [for the policy to be reasonable] and assessing whether an employer’s dress and grooming standards are reasonable, arbitrators will often engage in a balancing of the employer’s legitimate business interests with employees' interests in personal expression,” they said.
“The employer bears the burden in these cases to establish that the employee’s appearance poses a real threat to its business that is more important than the rights of the employee.”
Back in 2021, an elementary school teacher in Quebec was removed from her class because she wore a hijab to work. This was in accordance with a controversial law in the province, but usually such a ban would lead to a human rights challenge, says Nicole Toye, an employment lawyer and partner at Harris & Company in Vancouver.
In 2019, a Quebec teacher’s union announced it was suing the province over the religious symbols ban.
Non-discriminatory code
The employer must also ensure that the dress code is non-discriminatory in its application, and that it has been implemented in good faith, says the report from the school board.
“Dress code and grooming requirements which provide insufficient latitude for employees to comply with religious tenets and beliefs, or which result in differential treatment, will generally be found to be discriminatory, and thus, unenforceable. Policies which impose different grooming standards on men and women, or which place additional burdens on members of one gender, will quite often be deemed unenforceable,” said Taha and Ennis.
“Similarly, it is important to recognize the impact that dress code policies can have on members of the transgender community. Most notably, it is important for employers to make allowances to ensure that these employees are able to express themselves in accordance with their lived gender.”
Back in September, Ontario’s education minister asked the Ontario College of Teachers to review professional conduct provisions after photos emerged of the teacher in question.
“In this province, in our schools, we celebrate differences. We also believe there must be the highest standards of professionalism in front of our kids,” said Stephen Lecce.
Despite the rise of remote work, many women are still being asked to dress provocatively, says one expert.
